States Should Help Bring Down Obamacare

States can and should help end Obamacare whether Congress does their job, or not.

Will Republicans in Congress actually send President-elect a bill to repeal Obamacare?

At this point, a lot of questions remain. Do Republicans even have the votes to get it done? If so, will they completely scrap it, or will they leave parts of it in place? And if they do repeal, will they replace? What will that replacement look like?

With so much up in the air, it’s important to note states can take action right now that will set the stage to bring the Affordable Care Act down, no matter what Congress does.

How?

Refusing to provide any cooperation with the implementation or administration of Obamacare in the state.

The ACA was predicated on state cooperation. By ending all state actions that support the ACA and refusing to enforce any of its mandates, a state can make it nearly impossible to run Obamacare within its borders.

The federal government never intended to run the healthcare system alone, and ultimately, it can’t do it without state help. It even tried to compel states to expand Medicaid under the act, but that portion was struck down in the famous “Obamacare case,” NFIB v. Sebelius.

Additionally, we’ve seen the difficulties created for the Act by the number of states that simply refused to set up exchanges for the federal government.

Refusing to expand Medicaid or set up an exchange are two essential steps states should take, but they can go even further. Judge Andrew Napolitano noted that if a number of states were to refuse to participate with the ACA in a wholesale fashion, that multi-state action would “gut Obamacare.”

Napolitano said that if enough states follow suit, “it will gut ObamaCare because the federal government does not have the resources or the wherewithal […] to go into each of the individual states.”

BILL INTRODUCED

A bill introduced in the Connecticut House would do just that.

Rep. Robert Sampson (R) introduced House Bill 5138 (HB5138) on Jan. 4. The legislation would completely end any state participation in the Affordable Care Act.

That the general statutes be amended to repeal all statutes implementing health care mandates required under the Affordable Care Act, prohibit the state from participating in any program under or appropriating or expending any moneys in furtherance of said act, and dissolve all programs related to said act.

Boldin noted that the legislation would ban the Connecticut Department of Insurance from investigating or enforcing violations of federally mandated health insurance requirements and said this will “prove particularly problematic for the federal government.”

Insurance commissioners serve as the enforcement arm for insurance regulation in the states. The federal government has no enforcement arm. The feds assumed the state insurance commissioners would enforce all of the provisions of the ACA.

So, when people have issues with their mandated coverage, they will have to call the feds. At this point, it remains unclear who they will even call should the state be prohibited from carrying out this essential task. Issues the state insurance department would not address include prohibiting a denial of insurance for preexisting conditions, requiring dependent coverage for children up to age 26, and proscribing lifetime or yearly dollar limits on coverage of essential health benefits.

LEGAL BASIS

This strategy rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

FOLLOW THE LEAD

In a very real sense, this kind of state action would set the stage to effectively repeal the Affordable Care Act within that state. It will also place more pressure on Congress to completely repeal the healthcare act. And if the Republicans only partially repeal, as some have speculated will be the case, state action could finish the job.

Even though the political landscape in the Connecticut legislature makes it unlikely that HB5138 will be passed and signed into law, it serves as a model for other legislators in other states.

“Texas, Tennessee, Utah, Alaska, Oklahoma, Indiana, Kentucky – these are just a few of the many so-called ‘conservative states,'” said Boldin. “Bills to withdraw support from Obamacare should be introduced and passed in every state possible, right now.”

Some may find it tempting to wait and see what Congress does, but why delay when you can take effective action now? Congress may or may not do anything. If enough states take action, it won’t even matter.